Topic: Oruganti Seshachala vs Govt. Of Andhra Pradesh And Ors

1. The petitioner is the owner of the vehicle bearing registration No. APO 884. His vehicle was seized by S.I. of Police, Mettapally while transporting black jaggery and other prohibited items under the A.P. Excise Act, 1968 (for short "the Act"). On such seizure, a case was registered in Cr. No. 43/2002 under Section 34(E) of the Act and FIR was dispatched to Judicial First Class Magistrate, Huzurnagar on 6-7-2002, whereas seized property along with vehicle was transferred to the Inspector of Prohibition and Excise, Huzurnagar on 24-7-2002. The petitioner filed an application for release of the vehicle before the Judicial First Class Magistrate, Huzurnagar under Section 457 of the Code of Criminal Procedure (for short "the Code"), but the same was dismissed by his order dt. 11-7-2002 holding as follows :

"Police is not reported about the seizure of property as per Section 457(1) of Cr. P.C. Moreso, this is prematured stage for ordering disposal of the property. ......"

Against which, the petitioner filed Crl. Petition No. 5055 of 2002 before this Court. This Court in Crl. M.P. No. 6903/2002 in Crl. P. No. 5055 of 2002 passed the following order :

"Interim custody of the vehicle bearing No. APO 884 be granted to the petitioner subject to his executing a bond for Rs. 1,00,000/-(Rupees one lakh) with two solvent sureties in a like sum each to the satisfaction of the Judicial First Class Magistrate, Huzurnagar, on the petitioner undertaking to produce the vehicle before the Court as and when required, and not to alienate or encumber the said vehicle, and undertaking not to change the colour of the vehicle, and not to remove any spare parts therefrom and to maintain the vehicle in a good condition."

It is stated that after obtaining the above order, the petitioner appeared before the Judicial Magistrate of First Class, Huzurnagar, who by his proceedings No. 211 of 2002 dt. 8-11-2002 directed the State House Officer, Mettapally P.S., to release the vehicle to the petitioner. On receipt of the said letter, the Inspector of Police, Mettapally P.S., filed a memo stating that entire case property including the vehicle was handed over to the Inspector, Prohibition and Excise, Huzurnagar and he is not a party to Crl. M.P. No. 6903/2002. Therefore, the petitioner moved this Court by way of present writ petition.

2. Learned counsel for the petitioner submits that the vehicle was produced before the Deputy Commissioner of Prohibition and Excise under Section 46 of the Act before whom confiscation proceedings were initiated and requests the Court to direct him to release the vehicle. Learned counsel failed to substantiate how the vehicle can be released by the Magistrate under Section 457 of the Code in the absence of producing vehicle before him except stating that the order passed by this Court in Crl. M.P. No. 6903/2002 cannot be flouted by the authorities.

3. On the other hand, learned Government pleader for Excise has failed to assist the Court as to who can pass an order for release of the vehicle, whereas this Court in exercise of inherent power under Section 482 ordered for release of vehicle pending Cr. M.P. No. 5055 of 2002 filed for quashing the order passed by the Judicial First Class Magistrate in Crl. M.P. No. 1499/2002 in Cr. No. 43/2002 dt. 11-7-2002.

4. In view of the complex question, the sole point at issue for decision in this writ petition is whether the vehicle of the petitioner can be ordered for interim custody by issuing a mandamus for due implementation of the orders passed by this Court in Crl. M.P. No. 6903/2002, dt. 5-11-2002 or not.

5. For better appreciation of the point at issue, it is useful to extract some of the relevant provisions of the A. P. Excise Act, 1968.

45. Liability of certain things to confiscation :

Whoever any offence has been committed, which is punishable under this Act, following things shall be liable to confiscation namely :--

(1) and (2) x x x x x x x x;

(3) any receptacle, package, or covering in which anything liable to confiscation under Clause (1) or Clause (2) is found, and the other contents, if any, of such receptacle, package or covering and any animal, vehicle, vessel, raft or other conveyance used for carrying the same.

46. Confiscation by Excise Officers in certain cases:--

(1) Notwithstanding anything contained in this Act or any other law for the time being in force, where anything liable for confiscation under Section 45 is seized or detained under the provisions of this Act, the Officer seizing and detaining such property shall, without any unreasonable delay, produce the said seized property before the Deputy Commissioner of Excise who has jurisdiction over the area.

(2) On production of the said seized property under Sub-section (1) the Deputy Commissioner of Excise if satisfied that an offence under this Act has been committed, may, whether or not a prosecution is instituted for the commission of such an offence, order confiscation of such property,

(3) While making an order of confiscation under Sub-section (2), the Deputy Commissioner of Excise may also order that such of the properties to which the order of confiscation related which in his opinion cannot be preserved or are not fit for human consumption be destroyed.

(4) Where the Deputy Commissioner of Excise after passing an order of confiscation under Sub-section (2) is of the opinion that it is expedient in the public interest: so to do, he may order the confiscated property or any part thereof to be sold by public auction or dispose of departmentally.

(5) to (6) x x x x x x x x x x x x x x x x x x

46. E. Bar of jurisdiction:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) when the Deputy Commissioner of Excise or the appellate authority is seized with the matter under this Act, no Court shall entertain any application in respect of excisable articles any package, covering, receptacle, any animal, vehicle or other conveyance used in carrying such articles as far as its release, confiscation is concerned and the jurisdiction of the Deputy Commissioner of Excise of the appellate authority with regard to the disposal of the same shall be exclusive.

In view of the statutory provisions referred to above, it is clear that whenever an excise offence is committed and anything liable for confiscation under Section 43 is seized or detained under the provisions of A. P. Excise Act, the officer seizing or detaining such property shall produce the seized property along with a report before the Deputy Commissioner of Excise who has jurisdiction over the area and who can initiate confiscation proceedings after giving due notice to the parties if he satisfied that an offence has been committed, whether or not a prosecution is instituted for the commission of such an offence. The sections do not debar the Police/Excise officials from seizing the vehicle for registering a case and reporting crime to the Magistrate. In view of the express bar contained under Section 46-E and when the property is not produced before the Court in an inquiry or trial, the Magistrate is not empowered under Section 457 of the Code to make such order as he thinks fit, respecting the disposal of the property. The general provision of Section 452 of the Code with regard to disposal of property by a Criminal Court such as by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof, and that Section 457 investing a Magistrate to make an order for disposal of property seized by a police officer and not produced before a Criminal Court during an inquiry or trial, must necessarily yield where a statute makes a special provision with regard to forfeiture of any property and its disposal.

6. This Court in State of A.P. v. P.K. Mahammad, 1978 (1) APLJ 391 held that general power of the Court under Section 452 of the Code or that of the Magistrate under Section 457 to direct disposal of seized property, has to be read along with and in the context of the special procedure prescribed by the A. P. Forest Act. The same view was affirmed by a Division Bench of this Court in Mohd. Yaseen v. Forest Range Officer, Rayachoti, (1980) 1 Andh LT 8, dissenting with the earlier view taken by another Division Bench of this Court in Smt. Hazi Begum v. State of A.P. 1978 (2) APLJ 191 : (1979 Cri LJ NOC 42), which was reversed by the Supreme Court in C.A. No. 1216 of 1979 dt. 23-4-1979.

7. The Supreme Court further in Divisional Forest Officer v. G. V. Sudhakar Rao, while affirming the view expressed by His Lordship Justice B. P. Jeevan Reddy (as he then was) in the case of State of A.P. v. P.K. Mohammad (1978 (1) APLJ 391) (supra) and also a Division Bench of this Court in the case of Md. Yaseen v. Forest Range Officer. Rayachoty (1980 (1) Andh LT 8) (supra) held that it is only the Authorized Officer can order either for release or confiscation of the vehicle and the Magistrate could not have any jurisdiction to pass an order under Section 457 of the Code for disposal of such property, which is not produced before him.

8. A Division Bench of this Court in DFO v. District and Sessions Judge, 1985 (1) APLJ 47 held that the Sessions Judge has no revisory powers over the orders of the Authorized Officer; probably, he can entertain an appeal against the final orders passed by the Authorized Officer, therefore, release of lorry passed by the Sessions Judge is without jurisdiction. In case, the vehicle is produced before a Magistrate, the learned Sessions Judge may well interfere in exercise of his revisory powers but certainly not when the seized forest produce or the vehicle is not produced before a Magistrate.

9. In view of the settled proposition of law, the observation of Justice V.V.V. Rao in Ganesh Traders, Dhermapuri, Karimnagar v. District Collector, 2002 (1) Andh LD 210 : (2002 Cri IJ 1105) (FB) at para 59 that under Section 452(2) of Cr. P. C., pending trial of criminal offence, the Criminal Court is competent to release any property subject to such person executing a bond is per incuriam.

10. From the conspectus discussion of the facts, provisions of the Act and law as aforementioned, the question whether this Court can exercise the revisional jurisdiction against the orders passed by the Magistrate and can order for release of the vehicle has to be gone into at the time of final disposal of Cri. Petition No. 5055/2002. Suffice it to say, this Court cannot issue a mandamus to implement the interim order passed pending final adjudication of Cri. P. No. 5055/2002.

11. The writ petition fails and it is accordingly dismissed, it is open for the petitioner to approach the Deputy Commissioner of Prohibition and Excise, Mahabubnagar, by filing an application seeking release of vehicle, if not already filed, and on making such application, the Deputy Commissioner of Prohibition and Excise shall pass appropriate orders within two weeks from the date of such application. No costs.